The UCLA Online Institute for Cyberspace Law and Policy

The criminal provisions at issue in Reno v. ACLU are embodied in two sections of the Communications Decency Act (CDA). Section 223(a)(1)(B) applies to "telecommunications device[s]" and makes it a felony to transmit an "indecent" communication "knowing that the recipient of the communication is under 18 years of age." The term "indecent" is undefined in the statute.

Section 223(d)(1) applies to "interactive computer services." It criminalizes communications to minors that, "in context, depict[] or describe[], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Section 223(d)(1)(A) makes it a crime to "use[] an interactive computer service to send [such material] to a specific person or persons under 18 years of age." Section 223(d)(1)(B) makes it a crime to "display [such material] in a manner available" to any person under eighteen.

It is important to note that Section 223(e)(5)(A) creates an affirmative defense for anyone who "has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to [prohibited] communication[s] . . . ." Section 223(e)(5)(B) creates an affirmative defense for anyone who "has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number."

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sb: 26June1997

updated